Motion for Leave to File Brief and Brief of Amici Curiae in Support of Appellees of American Civil Liberties Union Foundation, Inc., League of Women Voters of the United States; And, League of Women Voters Education Fund

    NO. 83-1968 

IN THE 

Supreme Court of the United States 
October Term, 1985 

Lacy H. Thornburg, et al., 

Appellants, 

vs. 

Ralph Gingles, et al., 

Appellees. 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

MOTION FOR LEAVE TO FILE BRIEF AND BRIEF OF 
AMICI CURIAE IN SUPPORT OF APPELLEES OF 

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, 
INC., LEAGUE OF WOMEN VOTERS OF THE UNITED 

STATES; AND, LEAGUE OF WOMEN VOTERS 
EDUCATION FUND 

LAUGHLIN McDoNALD* 
NEIL BRADLEY 

CYNTHIA HILL 
League of Women 
Voters Education Fund 
1730 M. St., N.W. 
Washington, D.C. 20036 
(202) 429-1965 

American Civil Liberties Union 
Foundation, Inc. 

52 Fairlie St., N.W. 
Atlanta, GA 30303 
(404) 523-2721 

Of Counsel 
Maureen T. Thornton 

LEAGUE OF WOMEN VOTERS 
EDUCATION FUND 

ATTORNEYs FoR AMICI CuRIAE 
*Counsel of Record 





TABLE OF CONTENTS 

Page 

Table of Authorities .••• • .••••••.. iii 

Motion for Leave to File Brief 
of Amici Curiae .. ................. x 

Interests of Amici Curiae ••••••... l 

Statement of the Case ••••••.••••.. 2 

Summary of Argument .•.••••.•....•. 2 

Argument . ............... . ......... 5 

I. The Election of a Token Number 
of Minority Candiates Does Not 
Foreclose a Section 2 
Challenge. 

A. The Statute and the 
Legislative History ..•.••• S 

B. Congressional Policy Favors 
Strong Enforcement of Civil 
Rights Laws •.••••.•..•.•.. 30 

II. The District Court Properly 
Found Racial Bloc Voting. 

A. The Court Applied Correct 
Standards ........•••••.•.•• 36 

• B. The Court's Methodolgy 
Was Acceptable ••..•..•••••• 42 

-i-



C. This Court Should Not Adopt 
A Rigid Definition or Method 
of Proof of Bloc Voting ..•. 52 

Conclusion .......................... 65 

Appendix A .......................... A-1 

-ii-



TABLE OF AUTHORITIES 

Cases Pase(s) 

Alexander v. Louisiana, 
405 u.s. 625 (1972) ••.•••.•.••.. 55,56,57 

Allain v. Brooks, 
No. 83-2053 .... ................. 48 

Berry v. Cooper, 
577 F.2d 322 
(5th Cir. 1978) .•.•••.••••.•••.• 55 

Bolden v. City of Mobile 
423 F. Supp. 384 
(S.D. Ala. 1976) .••••...••...••• 44 

Castaneda v. Partida, 
430 u.s. 482 (1977) ..••••.••••.• 55,57 

City of Mobile v. Bolden, 
446 U.S. 55 (1980) ..•.••••.•..• passim 

City of Rome, Georgia v. 
United States, 
472 F. Supp. ,221 (D.C. 1979) ••••. 62 

City of Rome v. United States, 
446 u.s. 156 (1980) •••.•••.•••..• 62 

City of St. Petersburg v. 
United States, 354 F. Supp. 
1021, (D.D.C 1972) ••.••••••••••.. 44 

Cross v. Baxter, 
604 F.2d 875 
(5th Cir. 1979) •.•••.•..•.•..••• 25,60,61 

-iii-



Cases, cont'd. 

Foster v. Sparks, 
506 F.2d 805, 811-37 

Page(s) 

( 5th c i r . l 9 7 5 ) ••••.......••.•. 54 

Garcia v. United States, 
u.s. I lOS s. Ct. 479 

.,.,..( -=-1 =-9 8=-4 > . . . . . . . . . . . . . . • • . . • • . . . . . 2 1 

Gingles v. Edmisten, 
59 0 F • s u pp . I 3 4 5 ( E • D . N . c . 28,38 
1984) .......................... 39,42 

Hunter v. Underwood, 
u.s. I lOS s. Ct. 1916 

....,.(~1~98=-s· ) •. -.•.•..••....•..•..•...•• xi 

Jones v. City of Lubbock, 
730 F.2d 233, 727 F.2d 364 xiii,45 
(5th Cir. 1984) •.•...••••••••.•. 47,48,49 

Jordan v. Winter, 
Civ. No. GC-80-WK-0 
(N.D. Miss. April 16, 1984) ...••. 47 

Kirksey v. Board of Supervisors, 
554 F.2d 139 
(5th Cir. 1977) •.......•.•••••.••• 25 

Lodge v. Buxton, 
Civ. No. 176-55 
(S.D. Ga. Oct. 26, 1978) ..•..•.... 43 

Major v. Treen, 
574 F. Supp. 325 
(E. D. La. 198 3) .•.............•.•. 2 6 

Mandel v. Bradley, 
432 u.s. 173 (1977) •••.....••....• 49 

-iv-



Cases Page{s) 

McCain v. Lybrand, 
u.s. , 104 s.ct. 1037 

-..( -=-1..,...9 8-=-4 > • • • • • • • • • • • • • • • • • • • • • • • • • • • x i i 

McMillan v. Escambia County, 
748 F.2d 1037 
{5th Cir. 1984) ••.•.• . .. • .•.•••.••. 45 

Mississippi Republican Executive 
Committee v. Brooks, U.S. , 
105 S.Ct. 416 {1984) .••••••...••. 48,49 

NAACP v. Gadsden County School Board, 
691 F.2d 978 
{11th Cir. 1982) .•.....•••..••.•...•• 45 

Nevett v. Sides, 
571 F.2d 209 {5th Cir. 1978) ....••.•• 45 

Rogers v. Lodge, xii 
458 u.s. 613 {1982) .....••.....•..••. 44 

Rybicki v. St~te Board of Elections, 
574 F. Supp. 1147 
{E.D. Ill. 1983) ...•.•.....••.•.•..•.. 26 

Stephens v. Cox, 
449 F.2d 657 {4th Cir. 1971) ••••••.. • • 55 

South Carolina v. Katzenbach, 
383 u.s. 301 {1966) ......•....••.•...• 30 

Swain v. Alabama, 
380 u.s. 202 {1965) .•••..•.•...•.. 53,54 

United States v. 
Dallas County Commission, 
739 F.2d 1529 {11th Cir. 1984) •.••. 51 

-v-



Cases, cont'd Page(s) 

United States v. Jenkins, 
496 F.2d 57 (2d Cir. 1974) .••.•.... 34 

Unites States v. 
Marengo County Commission, 
731 F.2d (11th Cir. 25, 
1984) • • • • • • • .· • • • • • • • • • • • • • • • • • • • • • • 43 1 45 

Velasquez v. City of Abilene, 
725 F.2d 1017 
(5th Cir. 1984) •...•••..•....•..••.• 26 

White v. Regester, 412 U.S . 755 
( 19 7 3 ) .......•.................... passim 

Zimmer v. McKeithen, 
485 F.2d 1297 (5th Cir. 1973) ..... passim 

Zuber v. Allen, 
396 u.s. 168 (1969) ..•....•...•.•...•. 21 

Constitutional Provisions: 

Fifteenth Amendment • .••.•.......... ll 

Statutes 

28 u.s.c. §1861 ..•....••..•••.••.•.• 33 

42 u.s.c . §1973 •..•••••••••• . ... passim 

42 U.S.C. §2000a •• .• .. . •. • . • •. • . . • • • 32 

42 u.s.c . §2000e ••...•.• • .•.•.•.••. • 33 

-vi-



Statutes, cont'd Page(s) 

84 Stat. 314 •..•.•••.•.•• • •..•...... 31 

89 Stat. 402 ....................... . 31 

96 Stat. 131 ........................ 31 

96 Stat. 134 ........................ 10 

Federal Jury Selection and Service 33 
Act of 1968 .....••..•••.•••.••.•• 34,35 

Section 2, 
Voting Rights Act of 1965 ••.••.. passim 

Section 5, 
Voting Rights Act of 1965 .........•.. 31 

Title II, 
C i vi 1 Rights Act of 19 6 5 ••• ·. . . • . . . 3 2 , 3 4 

Title VII, 
Civil Rights Act of 1964 .•..•..••. 33,34 

Voting Rights Act of 1965 ..•.•..•...• 30 

Other Authorities 

CONGRESSIONAL RECORD 

127 Cong. Rec. H7011 .................. 11 
( 

128 Cong. Rec. H3839 . ................. 16 

128 Cong. Rec. 86930 ... ............... 24 

128 Cong. Rec. 86956 .. ............... . 16 

-vii-



Other Authorities, cont'd Page(s) 

CONGRESSIONAL RECORD 

128 Cong. Rec. S6965 .••••.•••••.•.•••• 16 

128 Cong. Rec. S7139 ••••••••...•...•.• 16 

Congressional Hearings 

Voting Rights Act: 
Hearings Before the Subcomm. 
on the Constitution of the 
Senate Comm. of the Judiciary, 
Vol. 1, 97th Cong., 2d Sess., 
(1982) ......................... 14,24 

Congressional Reports 

H.R. Rep. No. 914 , 88th 
Cong., 2d Sess. (1963) ..•.•.•.•• 32,33 

H.R. Rep. No. 1076, 90th 
Cong., 2d Sess. (1968) •••••••.••••. 33 

House Rep. No. 97-227, 97th Cong., 
lst Sess. (1981) .•• ••.•• ..• •. 13,19,20 

Senate Rep. No. 97-417, 97th Cong., 
2d Sess. (1982) ...•••.•..••.•.• passim 

Voting Rights Act: Report of the 
Subcomm. on the Constitution of 
the Senate Comm. on the Judiciary, 
97th Cong., 2d Sess. (1982) •••••••.• 13 

-viii-



House and Senate Bills Page(s) 

H.R. 3112. .11,16 

s. 1992 ••. • ••• 16 

-ix-



No. 83-1968 
IN THE 

SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

LACY H. THORNBURG, ET AL., 

Appellants, 
versus 

RALPH GINGLES, ET AL., 
Appellees. 

ON APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE EASTERN DISTRICT 

OF NORTH CAROLINA 

MOTION FOR LEAVE TO FILE BRIEF OF AMICI 
CURIAE IN SUPPORT OF APPELLEES OF 

AMERICAN CIVIL LIBERTIES UNION 
FOUNDATION, INC.; LEAGUE OF WOMEN 
VOTERS OF THE UNITED STATES; AND, 

LEAGUE OF WOMEN VOTERS EDUCATION FUND 

Come now the above listed 

organizations, by counsel, and move the 

Court for leave to file a brief amici 

curiae in support of the Appellees in 

-x-



the above styled cause. 1 

The American Civil Liberties Union 

Foundation, Inc. (ACLU) is a non-profit, 

nationwide, membership organization 

whose purpose is the defense of the 

fundamental rights of the people of the 

United States. A particular concern of 

the ACLU is the enforcement of the 

Fourteenth and Fifteenth Amendments, and 

implementing legislation enacted by 

Congress, in the area of minority voting 

rights. Attorneys associated with the 

ACLU have been involved in numerous 

voting rights cases on behalf of racial 

minorities, including, most recently in 

this Court, Hunter v. Underwood, 

u.s. ---

1counsel for 
given consent 
brief. 

105 S. Ct. 1916 (1985); 

the 
to 

Appellants 
the filing 

-xi-

have 
of 

not 
this 



McCain v. Lybrand, U.S. , 104 

S. Ct. 1037 (1984); and Rogers v. Lodge, 

458 u.s. 613 (1982). 

The League of Women Voters of the 

United States (LWVUS, or League) is a 

national, nonpartisan, nonprofit 

membership organization with 110,000 

members in all 50 states, the District 

of Columbia, Puerto Rico and the Virgin 

Islands. The LWVUS's purpose is to 

promote political responsibility through 

informed and active participation of 

citizens in government. The LWVUS 

believes voting is a fundamental right 

that must be fostered and protected. 

With its network , the LWVUS was a major 

participant in the effort to strengthen 

and extend the Voting Rights Act in 

1982. Leagues and the LWVUS have been 

active in voting rights litigation. 

The League of Women Voters 

-xii-



Education Fund (LWVEF), an affiliate of 

the LWVUS, is a nonpartisan, nonprofit 

education organization, one of whose 

purposes is to increase public 

understanding of major public policy 

issues. The LWVEF provides a variety of 

services, including research, 

publications, monitoring and litigation 

on current issues, such as voting rights 

and election administration. The 

LWVEF's docket includes Jones v. City of 

Lubbock, 730 F.2d 233, 727 F.2d 364 (5th 

Cir. 1984), in which a local League 

member was a named plaintiff. 

This case presents important issues 

involving the application of Section 2 

of the Voting Rights Act of 1965, 42 

U.S.C. § 1973, and whether the statute 

protects equal, or as argued by 

Appellants and the United States, merely 

token minority access to the political 

-xiii-: 



process. Because of the experience of 

amici in advocating minority voting 

rights, and because the parties may not 

adequately present the Section 2 issues 

discussed in this brief, amici believe 

their views may be of some benefit to 

the Court in resolving the issues raised 

in this appeal. 

Respectfully submitted, 

. * Laughl~n McDonald 
Neil Bradley 
American Civil 
Liberties Union 
Foundation, Inc. 
52 Fairlie St.,N.W. 
Atlanta, GA 30303 
(404) 523-2721 

Of Counsel: 
Maureen T. Thornton 
League of Women Voters 
Education Fund 

Cynthia D. Hill 
League of Women 
Voters Education 
Fund 
1730 M. St., N.W. 
Washington, D.C. 
20036 
(202) 429-1965 

Attorneys For Amici Curiae 

* Counsel of Record 

-xiv-



No. 83-1968 

IN THE 
SUPREME COURT OF THE UNITED STATES 

October Term, 1985 

LACY H. THORNBURG, ET AL., 
Appellants, 

versus 
RALPH GINGLES, ET AL., 

Appellees. 

ON APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE EASTERN DISTRICT 

OF NORTH CAROLINA 

BRIEF OF AMICI CURIAE IN SUPPORT OF 
APPELLEES OF AMERICAN CIVIL LIBERTIES 

UNION FOUNDATION, INC.; LEAGUE OF WOMEN 
VOTERS OF THE UNITED STATES; AND, 

LEAGUE OF WOMEN VOTERS EDUCATION FUND 

INTEREST OF AMICI CURIAE 

The interests of amici curiae are 

set forth in the motion for leave to 

file this brief, supra, p. x. 

-1-



STATEMENT OF THE CASE 

Amici adopt the statement of the 

case contained in the Brief of 

Appellees. 

SUMMARY OF ARGUMENT 

In 1982 Congress amended Section 2 

of the Voting Rights Act, 42 U.S.C. § 

1973, to make clear its purpose of 

prohibiting voting procedures that 

result in discrimination. The 

construction urged upon this Court by 

the Appellants and the Solicitor General 

that the elect ion of a token number 

of minorities to office in the disputed 

districts of North Carolina's 1982 

legislative reapportionment forecloses a 

challenge under Section 2 -- is totally 

inconsistent with Congress's purposes in 

-2-



amending Section 2. 

The language and the legislative 

history of Section 2 expressly show that 

there is no validity to the argument 

that minimal success by minority 

candidates can be equated with fair and 

effective participation of minorities in 

the political process. Section 2 is 

designed to protect the right to equal, 

not token or minimal, participation. 

The extent to which minorities have been 

elected is only one of the factors to be 

considered ,by a court in evaluating a 

Section 2 claim. 

Congress has articulated a policy 

that favors strong enforcement of civil 

rights. Such a policy clearly does not 

embrace 

voting. 

Solicitor 

tokenism or minimal ism in 

If the Appellants and the 

General prevail in their 

argument, there will be no incentive for 

-3-



jurisdictions to comply voluntarily with 

the Voting Rights Act, but instead they 

will be encouraged to resist and to 

circumvent Section 2. 

The district court applied correct 

legal standards and methods of analysis 

in finding racial bloc voting. The 

imposition of any rigid definitions or 

methodologies for proving bloc voting 

would be inconsistent with the purposes 

of Section 2, would unduly burden 

minority plaintiffs and in some cases 

would make it impossible to challenge 

discriminatory voting practices. 

The judgment below should be 

affirmed on the grounds that the trial 

court properly applied Section 2. 

-4-



ARGUMENT 

I. THE ELECTION OF A TOKEN NUMBER OF 
MINORITY CANDIDATES DOES NOT 
FORECLOSE A SECTION 2 CHALLENGE. 

A. The Statute and the 
Legislative Hist~ 

Both the Appellants and the 

Solicitor General, as counsel for amicus 

curiae the United States, argue that the 

election of a token number of minorities 

to office in the disputed districts of 

North Carolina's 1982 legislative 

reapportionment absolutely forecloses 

Appellees' challenge to the . diluting 

effect of at-large voting and multi-

member districting under Section 2 of 

the Voting Rights Act of 1965, 42 U.S.C. 

§ 1973. See Appellants' Brief, p. 24: 

"The degree of success at the polls 

-5-



enjoyed by black North Carolinians is 

sufficient in itself to distinguish this 

case from White [v. Resester ,412 u.s. 

755 (1973] and Mobile [v. Bolden, 446 

u.s. . 55 (1980) ] and to entirely 

discredit the plaintiffs' theory that 

the present legislative districts deny 

blacks equal access to the political 

process." (emphasis supplied); Brief for 

the United States as Amicus Curiae, p. 

27: "multimember districts are not 

unlawful where, as here, minority 

candidates are not effectively shut out 

of the electoral process." 1 

1The Solicitor General, underscoring the 
extremity of this position, noted that 
" [ t]he closest analogy to this case is 
Dove v. Moore, supra, in which the court 
of appeals upheld the validity of an at­
large system under which the 40% black 
minority elected one member to an eight­
member city council." (emphasis 
supplied). Id., at 27-8. 

-6-



The argument that minimal success 

by minority candidates absolutely 

forecloses a Section 2 challenge is 

refuted by the language of the statute 

itself. 2 First, the statute requires 

2section 2 provides in full: 

(a) No voting qualification or 
prerequisite to voting or standard, 
practice, or procedure shall be 
imposed or applied by any State or 
political subdivision in a manner 
which results in a denial or 
abridgement of the right of any 
citizen of the United States to 
vote on account of race or color, 
or ip contravention of the 
guarantees set forth in section 
1973b(f)(2) of this title, as 
provided in subsection (b) of this 
section. 

(b) A violation of subsection (a} 
of this section is established if, 
based on the totality of 
circumstances, it is shown that the 
political processes leading to 
nomination or election in the State 
or political subdivision are not 
equally open to participation by 
members of a class of citizens 
protected by subsection (a} of this 
section in that its members have 
less opportunity than other members 
[Footnote continued] 

-7-



that political processes be "equally 

open" to minorities, and that they not 

have "less opportunity than other 

members of the electorate to participate 

in the political process and to elect 

representatives of their choice." The 

right protected by the statute, 

therefore, is one of equal, not token or 

minimal, political participation. 

Second, the statute directs the 

trial court to consider "the totality of 

circumstances" in evaluating a 

violation, and provides that "[t]he 

of the electorate to participate in 
the political process and to elect 
representatives of their choice. 
The extent to which members of a 
protected class have been elected 
to office in the State or political 
subdivision is one circumstance 
which may be considered: Provided, 
that nothing in this section 
establishes a right to have members 
of a protected class elected in 
numbers equal to their proportion 
in the population. 

-8-



extent to which members of a protected 

class have been elected to office in the 

State or political subdivision is one 

circumstance which may be considered." 

Obviously, if black electoral success is 

merely one of the "totality" of 

circumstances which may be considered by 

a court in evaluating a Section 2 claim, 

a finding of minimal or any other level 

of success could not be dispositive. 

The statute on its face contemplates 

that other circumstances may and should 

be considered. 

The legislative history of Section 

2 makes the point explicitly. It 

provides that factors in addition to the 

election of minorities to office should 

be considered, and that minority 

candidate success does not foreclose the 

possibility of dilution of the minority 

vote. See Senate Rep. No. 97-417, 97th 

-9-



Cong., 2d Sess. 29 n.llS (1982) 

(hereinafter "Senate Rep."). 

In 1982, Congress amended Section 2 

to provide that any voting law or 

practice is unlawful if it "results" in 

discrimination on acount of race, color 

or membership in a language minority. 

96 Stat. at 134, §3, amending 42 U.S.C. 

§ 1973. Prior to amendment, the statute 

provided simply that no voting law or 

practice "shall be imposed or 

applied ... to deny or abridge the 

right .•. to vote on account of race or 

color" or membership in a language 

minority. 3 A plurality of this Court, 

3The statute provided in its entirety: 
"No voting qualification or prerequisite 
to voting, or standard, practice or 
procedure shall be imposed or applied by 
any State or political subdivision to 
deny or abridge the right of any citizen 
of the United States to vote on account 
of race or color, or in contravention of 
the guarantees set forth in Section 
[Footnote continued] 

-10-



however, in City of Mobile v. Bolden, 

446 U.S. 55, 60-1 (1980), held that "the 

language of §2 no more than elaborates 

upon that of the Fifteenth Amendment," 

which it found to require purposeful 

discrimination for a violation, and that 

"the sparse legislative history of §2 

makes clear that it was intended to have 

an effect no different from that of the 

Fifteenth Amendment itself." 

Congress responded directly to City 

of Mobile by amending the Voting Rights 

Act. The House, by a vote of 389 to 24, 

passed an amendment to Section 2 on 

October 5, 1981. 127 Cong. Rec. H7011 

(daily ed., Oct. 5, 1981). The House 

bill, H.R. 3112, provided (the language 

in brackets was deleted and the language 

in italics was added): 

1973b(f)(2) of this Title." 

-11-



Section 2. No voting 
qualification or prerequisite to 
voting, or standard, practice, or 
procedure shall be imposed or 
applied by any State or political 
subdivision [to deny o~ abridge] in 
a manner which results in a denial 
or abridsement of the right of any 
c1tizen of the United States to 
vote on account of race or color, 
or in contravention of the 
guarantees set forth in section 
4(f)(2). The fact that members of 
a minoritl 9roup have not been 
elected in numbers equal to the 
3!0UE 1 s Eroportion of the 
EOEulation shall not, 1n a~ of 
itself, constitute a violation of 
t'hrs section. 

As the Report of the House Committee on 

the Judiciary explained, the purpose of 

the amendment was "to make clear that 

proof of discriminatory purpose or 

intent is not required in cases brought 

under that provision," and "to restate 

Congress' earlier intent that violations 

of the Voting Rights Act, including 

Section 2, could be established by 

showing the discriminatory effect of the 

-12-



challenged practice." House 

97-227, 97th Cong., lst Sess. 

{hereinafter "House Rep."). 

Rep. No. 

29 {1981) 

In the Senate, the Subcommittee on 

the Constitution, chaired by Senator 

Orrin Hatch, rejected the Section 2 

amendment and reported out a ten year 

extension of Section 5 and the other 

temporary provisions of the Act by a 

vote of 3 to 2. Voting Rights Act: 

Report of the Subcomm. on the 

Constitution of the Senate Comm. on the 

Judiciary, 97th Cong., 2d Sess. 67 

{1982). The Senate Judiciary Committee, 

however, pursuant to the so-called "Dole 

Compromise," authored by Sen. Robert 

Dole, returned the results standard to 

Section 2 and added subsection {b), 

taking language directly from White v. 

Regester, 412 U.S. 755, 766 {1973). The 

purpose of the addition was to clarify 

-13-



that the amended statute "is meant to 

restore the pre-Mobile legal standard 

which governed cases challenging 

election systems or practices as an 

illegal dilution of the minority vote," 

and "embodies the test laid down by the 

Supreme Court in White." Senate Rep. at 

27. The Senate bill also provided, as 

did the House bill, that amended 

Section 2 did not guarantee the right to 

proportional representation. 

30-1. 

Id. , at 

The Senate disclaimer was designed 

to meet criticism, particularly by 

Senator Hatch, that the language of the 

House bill would permit a violation of 

the statute merely upon a showing of 

lack of a proportional number of 

minorities in office and "an additional 

scintilla of evidence." Voting Rights 

Act: Hearings Before the Subcomm. on the 

-14-



Constitution of the Senate Comm. of the 

Judiciary, Vo~, 97th Cong., 2d Sess. 

516 (1982) (hereinafter "Senate 

Hearings"). The compromise language was 

intended to clarify (if indeed 

clarification was needed) that a court 

was obligated to look at the totality of 

relevant circumstances and that, as in 

"this White line of cases," minority 

office holding was "one circumstance 

which may be considered." 2 Senate 

Hearings at 60 (remarks by Senator 

Dole) . The compromise language, 

however, was not intended to alter in 

any way the House bill's totality of 

circumstances formulation based upon 

White. That is made clear by the Senate 

Report which provides that the 

Committee's substitute language was 

"faithful to the basic intent of the 

Section 2 amendment adopted by the 

-15-



House," and was designed simply "to 

spell out more specifically in the 

statute the standard that the proposed 

amendment is intended to codify . " 

Senate Rep. at 27. 

The Senate passed the Senate 

Judiciary Committee's Section 2 bill 

without change on June 18, 1982. 128 

Cong. Rec. S7139 (daily ed., June 18, 

1982). 4 The Senate bill (S. 1992) was 

returned to the House where it was 

incorporated into the House bill (H.R. 

3112) as a substitute, and was passed 

unanimously. 128 Cong. Rec. H3a39-46 

(daily ed., June 23, 1982). 

Both the House and Senate Reports 

4Prior to passage the Senate defeated by 
a vote of 81 to 16 a proposed amendment 
deleting the "results" language from the 
bill introduced by Senator John East. 
128 Cong. Rec. S6956, S6965 (daily ed., 
June 17, 1982). 

-16-



give detailed guidelines on the 

implementation of Section 2 and 

congressional intent in amending the 

statute. According to the Senate 

Report, plaintiffs can establish a 

violation by showing "a variety of 

factors [taken from White, Zimmer v. 

McKeithen, 485 F.2d 1297 (5th Cir. 1973) 

(en bane), aff 'd on other grounds sub. 

nom. East Carroll Parish School Board v. 

Marshall, 424 U.S. 636 (1976), and other 

pre-Bolden voting cases], depending upon 

the kind of rule, practice, or procedure 

called into question." Senate Rep. at 

28. Typical factors include: 

1. the extent of any history of 
official discrimination in the 
state or political subdivision that 
touched the right of the members of 
the minority group to register, to 
vote, or otherwise to participate 
in the democratic process: 

2. the extent to which voting in 
the elections of the state or 
political subdivision is racially 
polarized: 

-17-



3. the extent to which the state 
or political subdivision has used 
unusually large election districts, 
majority vote requirements, anti­
single shot provisions, or other 
voting practices or procedures that 
may enhance the opportunity for 
discrimination against the minority 
group; 

4. if there is a candidate 
slating process, whether the 
members of the minority group have 
been denied access to that process; 

5. the extent to which members of 
the minority group in the state or 
political subdivision bear the 
effects of discrimination in such 
areas as education, employment and 
health, which hinder their ability 
to participate effectively in the 
political process; 

6. whether political campaigns 
have been characterized by overt or 
subtle racial appeals; 

7. the extent to which members of 
the minority group have been 
elected to public office in the 
jurisdiction. 
Id., at 28-9. 

The factors set out in the Senate 

Report were not deemed to be exclusive, 

but illustrative: "while these 

-18-



enumerated factors will often be the 

most relevant ones, in some cases other 

factors will be indicative of the 

alleged dilution." Id. In addition, 

Congress made it plain that "there is no 

requirement that any particular number 

of factors be proved, or that a majority 

of them point one way or the other." 

Id. Instead, Section 2 "requires the 

court • s overall judgment based on the 

totality of circumstances and guided by 

those relevant factors in the particular 

case, of whether the voting strength of 

minority voters is ••• 'minimized or 

cancelled out."' Id., at 29 n.ll8. 

The House Report is to the same 

effect: "the court should look to the 

context of the challenged standard, 

practice or procedure," and consider 

"[a]n aggregate of objective factors" 

taken from pre-Mobile decisions, similar 

-19-



to those set out in the Senate Report. 

House Rep. at 30. And like the Senate 

Report, the House Report provides that 

"[a]ll of these factors need not be 

proved to establish a Section 2 

violation." Id. 

Not only does the legislative 

history provide that no one factor is 

dispositive in vote dilution cases, and 

that the courts should consider the 

totality of relevant circumstances, but 

the argument of the State and the 

Solicitor General that minimal or token 

minority candidate success forecloses a 

statutory challenge was considered and 

expressly rejected. While the extent to 

which minorities have been elected to 

office is a significant and relevant 

factor in vote dilution cases, the 

Senate Report indicates that it is not 

conclusive. 

-20-



The fact that no members of a 
minority group have been elected to 
office over an extended period of 
time is probative. However, the 
election of a few minority 
candidates does not 'necessarily 
foreclose the possibility of 
dilution of the black vote', in 
violation of this section. Zimmer 
485 F. 2d at 1307 . If it did, the 
possibility exists that the 
majority citizens might evade the 
section e.g., by manipulating the 
election of a 'safe' minority 
candidate. 'Were we to hold that a 
minority candidate's success at the 
polls is conclusive proof of a 
minority group's access to the 
political process, we would merely 
be inviting attempts to circumvent 
the Constitution •.. Instead we shall 
continue to require an independent 
consideration of the record.' 
Ibid. 
Id., at 29 n.ll55 

5The Solicitor General attempts to 
discount the Senate Report on this point 
by arguing that the report "cannot be 
taken as determinative on all counts." 
Brief for the United States as Amicus 
Curiae, p. 24 n.49. Of course, this 
Court has "repeatedly stated that the 
authoritative source for finding the 
legislature's intent lies in the 
Committee reports on the bill." Zuber 
v. Allen, 396 U.S. 168, 186 (1969). 
Accord, Garcia v. United States, 
[Footnote continued] 

-21-



In Zimmer, relied upon in the 

Senate Report, three black candidates 

won at-large elections in East Carroll 

Parish after the case was tried. The 

county argued, as the State and 

Solicitor General do here, that these 

successes "dictated a finding that the 

at-large scheme did not in fact dilute 

the black vote." 485 F.2d at 1307. The 

Fifth Circuit disagreed: 

we cannot endorse the view that the 
success of black candidates at the 
polls necessarily forecloses the 
possibility of dilution of the 
black vote. Such success might, on 
occasion, be attributable to the 

u.s. 105 s. Ct. 4 79 I 483 
(1984). In any case, there is simply 
nothing in the legislative history to 
indicate that there was any disagreement 
with the proposition that "the election 
of a few minority candidates does not 
'necessarily foreclose the possibility 
of dilution of the black vote', in 
violation of this Section." Senate Rep. 
at 29, n. 115. 

-22-



work of politicians, who, 
apprehending that the support of a 
black candidate would be 
politically expedient, campaign to 
insure his election. Or such 
success might be attributable to 
political support motivated by 
different considerations namely 
that election of a black candidate 
will thwart successful challenges 
to electoral schemes on dilution 
grounds. In either situation, a 
candidate could be elected despite 
the relative political backwardness 
of black residents in the electoral 
district. 
Id. 

Similarly, in White v. Regester, 

the case principally relied upon by 

Congress as embodying the 11 results 11 

standard it incorporated into Section 2, 

and whose language Congress expressly 

adopted, two blacks and five Mexican-

Americans had been elected to the Texas 

Legislature from Dallas and Bexar 

Counties. 412 u.s. at 766, 768-69. 

Despite that level of minority candidate 

success, which is greater than that in 

-23-



some of the districts claimed by the 

State and the Solicitor General to be 

immune from a Section 2 ' challenge here, 

e.g. House Districts 8 and 36, and 

Senate Districts 2 and 22, this Court in 

a unanimous decision held at-large 

elections impermissibly diluted minority 

voting strength in those counties. 

In addition to White and Zimmer, 

the Congress, in amending Section 2, 

relied upon some 23 courts of appeals 

decisions which had applied a results or 

effect test prior to City of Mobile. 

Senate Rep. at 32, 194; 128 Cong. Rec. 

S6930 (daily ed. June 17, 1982) (remarks 

of Sen. DeConcini): 6 One of those 23 

6The 23 cases are listed and discussed 
in 1 Senate Hearings at 1216-26 
(appendix to prepared statement of Frank 
R. Parker, Director, Voting Rights 
Project, Lawyers' Committee for Civil 
Rights Under Law). 

-24-



cases, Kirksey v. Board of SuEervisor~, 

554 F.2d 139, 149 n.21 (5th Cir. 1977), 

commented upon the continuing validity 

of the Zimmer rule that the election of 

a minimal number of blacks did not 

foreclose a dilution claim: "we add the 

caveat that the election of black 

candidates does not automatically mean 

that black voting strength is not 

minimized or cancelled out." Accord, 

Cross v. Baxter, 604 F.2d 875, 880 n.7, 

885 (5th Cir. 1979). 

Cases decided since the amendment 

of Section 2 have predictably applied 

the statute in light of the legislative 

history and rejected the contention that 

minimal or token black success at the 

polls forecloses a dilution claim. See, 

United States v. Marengo County 

Commission, 731 F.2d 1546, 1571-72 (11th 

Cir. 1984) ("it is equally clear that 

-25-



the election of one or a small number of 

minority elected officials will not 

compel a finding of no dilution"), cert. 

denied, u.s. I 105 s. Ct. 375 ---
(1984); Velasquez v. City of Abilene, 

725 F.2d 1017, 1023 (5th Cir. 1984) ("In 

the Senate Report •.. it was specifically 

noted that the mere election of a few 

minority candidates was not sufficient 

to bar a finding of voting dilution 

under the results test."); Major v. 

Treen, 574 F. Supp. 325, 339 (E.D. La. 

198 3) ; . Rybicki v. _s_t_a_t_e __ B_o_a_r_d~_o_f 

Elections, 574 F. Supp. 1147, 

n. 5 (E. D. I 11 . ( 198 3 ) . 

1151 and 

The necessity of considering 

factors other than the election of 

minorities 

apparent in 

County) and 

to office is particularly 

House District 21 (Wake 

House District 23 (Durham 

County), districts in which blacks, 

-26-



according to the Solicitor General, have 

enjoyed "proportional representation." 

Brief for the United States as Amicus 

Curiae Supporting Appellants, p.25. 

While one black has been elected to the 

three member delegation from House 

District 23 since 1973, and a black has 

been elected in 1980 and 1982 to the six 

member delegation 

21, the district 

from House District 

court found this 

success was the result of single shot 

voting by blacks, a process which 

requires minorities to give up the right 

to vote for a full slate of 

candidates. According to the lower 

court, "[o]ne revealed consequence of 

this disadvantage [of a significant 

segment of the white voters not voting 

for any black candidate] is that to have 

a chance of success in electing 

candidates of their . choice in these 

-27-



districts, black voters must rely 

extensively on single-shot voting, 

thereby forfeiting by practical 

necessity their right to vote for a full 

slate of candidates." Gingles, · 590 F. 

Supp. at 369. Under the circumstances, 

the election of blacks in these 

districts can not mask the fact that the 

multi-member 

unfairly and 

strength. 

system treats minorities 

dilutes their voting 

Black voters in House District 23 

must forfeit up to two-thirds of their 

voting strength and black voters in 

House District 21 must forfeit up to 

five-sixths of their voting strength to 

elect a candidate of their choice to 

office. Whites, by contrast, can vote 

for a full slate of candidates without 

forfeiting any of their voting strength 

and elect candidates of their choice to 

-28-



office. Such a s ystem clear ly does not 

provide black vot ers equa l access nor 

the equal opportunity to participate in 

the political process and elect 

candidates of their choice to office. 

That is another reason why the mere 

election of even a proportional number 

of blacks to office does not, and should 

not, foreclose a . dilution challenge. As 

Section 2 and the legislative history 

provide, a court must view the totality 

of relevant circumstances to determine 

whether the 

minorities is 

voting strength of 

in fact minimized or 

abridged in violation of the statute. 

To summarize, the position of the 

State and the Solicitor General that the 

election of a token or any other number 

of blacks to office bars a dilution 

challenge must be rejected because it is 

contrary to the express language of 

-29-



Section 2, the legislative history and 

the pre-Mobile line of cases whose 

standards Congress incorporated into the 

"results" test. 

B. Congressional Policy Favors 
~~ron9 Enforcement of Civil 
R19hts Laws 

Congress enacted the Voting Rights 

Act of 1965 as an "uncommon exercise of 

congressional power" designed to combat 

the "unremitting and ingenious defiance 

of the Constitution" by some 

jurisdictions in denying minority voting 

rights. South Carol ina v. Ka tzenbach, 

383 u.s. 301, 309, 334 (1966). Based 

upon the continuing need for voting 

rights protection, Congress extended and 

expanded the coverage of the Act three 

-30-



times in 1970, 1975 and 1982. 7 It 

would be illogical to suppose, that in 

amending Section 2, Congress suddenly 

retreated from its general commitment to 

racial equality in voting and adopted a 

statute providing only tokenism and 

minimal political participation. That 

is certainly not what the Congress 

thought it was doing. As the Senate 

Report provides, the purpose of the 1982 

7voting Rights Act Amendments of 1970, 
84 Stat. 314 (extending Section 5 
coverage and the other special 
provisions of the Act for five more 
years; adding jurisdictions for special 
coverage; establishing a five year 
nationwide ban on literacy tests); Act 
of August 6, 1975, 89 Stat. 402 
(extending Section 5 and the other 
special provisions for seven additional 
years; making permanent the nationwide 
ban on literacy tests; extending Section 
5 to language minorities and requiring 
bilingual registration and elections in 
certain jurisdictions); Voting Rights 
Act Amendments of 1982, 96 Stat. 131 
(extending Section 5 for twenty-five 
years and amending Section 2). 

-31-



legislation was to "extend the essential 

protections of the historic Voting 

Rights Act ... [and] insure that the hard­

won progress of the past is preserved 

and that the effort to achieve full 

participation for all Americans in our 

democracy will continue in the 

future." Senate Rep. at 4. 

Modern congressional civil rights 

enforcement policy in other areas has 

similarly not been one of minimalism. 

Congress, for example, clearly intended 

to protect more than token access to 

public accommodations when it enacted 

Title II of the Civil Rights Act of 

1964, 42 U.S.C. § 2000a et. seq .. See, 

H.R. Rep. No. 914, 88th Cong., 2d Sess. 

{1963), reprinted in [1964] 2 U.S. Code 

Cong. & Ad. News 2393 {"It 

is ••. necessary for the Congress to enact 

legislation which prohibits and provides 

-32:... 



the means to 

serious types 

terminating the most 

of discrimination.") 

Congress also sought to protect more 

than token access to employment 

opportunities and jury service when it 

enacted Title VII of the Civil Rights 

Act of 1964, 42 U.S.C. § 2000e et. seq., 

and the Federal Jury Selection and 

Service Act of 1968, 28 U.S.C. § 1861 

et. ~· H.R. Rep. No. 914, supra, U.S. 

Code Cong. & Ad. News at 2401 ("the 

purpose of this title is to 

eliminate ... discrimination in employment 

based on race, color, religion, or 

national origin."); H.R. Rep. No. 1076, 

90th Cong., 2d Sess. (1968), reprinted 

~ [1968] 2 U.S. Code Cong. & Ad. News 

1793 (a major purpose of the Federal 

Jury Act is to establish "an effective 

bulwark against impermissible forms of 

discrimination and arbitrariness in jury 

-33-



selection . ") 

II 

2 does not guarantee 

representation any more 

guarantees proportional 

Section 

proportional 

than Title 

occupancy of places of public 

accommodation, or Title VII guarantees 

proportionality in hiring, or the 

Federal Jury Act guarantees juries that 

proportionately represent minorities. 

See,~-, United States v. Jenkins, 496 

F.2d 57, 65 (2d Cir. 1974) ("The Act was 

not intended to require precise 

proportional representation of minority 

groups on grand or petit jury 

panels.") But certainly Title II could 

not be rationally construed to bar a 

challenge to an otherwise discriminatory 

public accommodations policy merely 

because any given number of rooms were 

let to blacks, nor could Title VI I be 

construed to bar an otherwise valid 

-34-



employment discrimination claim merely 

because a token number of minorities had 

been hired, nor could the Federal Jury 

Act be deemed to bar a challenge to a 

discriminatory jury selection system 

merely because a few blacks were allowed 

into the jury pool. Such a reading of 

congressional civil rights laws would be 

illogical and totally contrary to the 

intent of Congress in legislating 

against discrimination. Yet, that is 

the untenable position of the State and 

the Solicitor General in this case. 

If the State and the Solicitor 

General 

will 

prevail in their 

be impossible 

argument, it 

to eradicate 

discriminatory election 

places where minority 

had some success. In 

procedures in 

candidates have 

addition, those 

jurisdictions in which black candidates 

have had no success will be encouraged, 

-35-



as Congress found, to manipulate the 

election of a "safe" or token minority 

candidate to give the appearance of 

racial fairness and thwart successful 

dilution challenges to discriminatory 

election schemes. As a result, there 

will be no incentive for voluntary 

compliance with Section 2, and every 

inducement for circumvention and 

continued litigation. Future progress 

in minority voting rights will be dealt 

a severe setback. 

II. THE DISTRICT COURT PROPERLY FOUND 
RACIAL BLOC VOTING. 

A. The Court Applied Correct 
Standards 

The State and the Solicitor General 

argue that the district court applied a 

-36-



legally incorrect definition of bloc 

voting which vitiates its conclusions 

that the challenged districts dilute 

minority voting strength. 8 According to 

the State, the lower court applied the 

test that "polarized voting occurs 

whenever less than 50% of the white 

voters cast a ballot for the black 

candidate." Appellants' Brief, p. 36. 

According to the Solicitor General, the 

court adopted a definition that 

polarized voting occurs "whenever 'the 

results of the individual election would 

have been different depending upon 

whether it had been held among only the 

white voters or the black voters in the 

8The State concedes that Appellees' 
calculations were basically accurate, 
and that the methods of analysis used 
"were standard in the literature." 590 
F. Supp. at 368. 

-37-



election.'" Brief for the United States 

as Amicus Curiae, p. 29. 

While it is true, as the trial 

court noted, that in none of the 

elections did a black candidate receive 

a majority of white votes cast, 590 F. 

Supp. at 368, and that in all but two of 

the elections the results would have 

been different depending upon whether 

they had been held among only the white 

or only the black voters, id., the court 

did not base its finding of bloc voting 

merely upon these facts. The district 

court examined extensive statistical 

evidence of 53 sets of election returns 

involving black candidacies in all the 

challenged districts, heard expert and 

lay testimony and concluded that: 

On the average, 81.7% of white 
voters did not vote for any black 
candidate in the primary 
elections. In the general 
elections, white voters almost 
always ranked black candidates 

-38-



The 

either last or next to last in the 
multi-candidate field except in 
heavily Democratic areas~ in these 
latter, white voters consistently 
ranked black candidates last among 
Democrats if not last or next to 
last among all candidates. In 
fact, approximately two-thirds of 
white voters did not vote for black 
candidates in general elections 
even after the candidate had won 
the Democratic primary and the only 
choice was to vote for a Republican 
or no one. Black incumbency 
alleviated the general level of 
polarization reveal-ed, but it did 
not eliminate it. Some black 
incumbents were reelected, but none 
received a majority of white votes 
even when the election was 
essentially uncontested. 
Id. 

court also found that the 

polarization was statistically 

significant in every election in that 

the probability of it occurring by 

chance was less than one in 100,000. 

Id. 9 Taking the opinion as a whole, it 

9The court determined "statistical 
significance" by examining the 
[Footnote continued] 

-39-



is clear that the district court did not 

adopt or apply a narrow, simplistic or 

legally incorrect definition of 

polarized voting.10 

The State also contends that racial 

bloc voting in the challenged districts 

is irrelevant where a black won an 

election. Appellants' Brief, pp. 39-

40: "Racially polarized voting is 

correlations between the race of voters 
and candidates prepared by Appellees' 
expert. While "correlations above an 
absolute value of .5 are relatively rare 
and correlations above .9 extremely 
rare •.. [a]ll correlations found by Dr. 
Grofman in the elections studied had 
absolute values between .7 and .98, with 
most above .9. This revealed 
statistical significance at the .00001 
level probability of chance as 
explanation for the coincidence of 
voter's and candidate's race less than 
one in 100,000." 590 F. Supp. at 368 
n.30. 

10Both the State and the Solicitor 
General have opinions about when bloc 
voting is relevant, but neither, it 
should be noted, attempted to define 
racial bloc voting. 

-40-



significant ... when the black candidate 

does not receive enough white support to 

win the election ... The mere presence of 

different voting patterns in the white 

and black electorate does not prove 

anything one way or the other about vote 

dilution." Given this analysis, 100% 

voting along racial lines would be 

irrelevant in a challenge to multi­

member district elections if blacks were 

able to single-shot a black into 

office. Congress indicated in the 

statute and the legislative history, 

however, that the totality of relevant 

circumstances should be considered. One 

of the relevant circumstances, 

regardless of other factors that may be 

present, is bloc voting. 

-41-



B. The Court's Methodols~ 
Was Acceptable 

In finding racial bloc voting, the 

court below relied upon two methods of 

statistical analysis employed by 

Appellees' expert: extreme case analysis 

and bivariate ecological regression 

analysis. 11 Both methods are "standard 

in the literature," as the lower court 

found, 590 F. Supp. at 367 n.29, and 

both have been extensively used by the 

courts in voting cases in establishing 

the presence or absence of racial bloc 

11Extreme case analysis compares the 
race of voters and candidates in 
racially homogeneous precincts. 
Regression analysis uses data from all 
precincts and corrects for the fact that 
voters in homogeneous and non-
homogeneous precincts may vote 
differently. 590 F. Supp. at 367 n.29. 

-42-



voting. 12 

In Lodge v. Buxton, Civ. No. 176-55 

(S.D. Ga. Oct. 26, 1978), slip op. at 7-

8, the trial court found racial bloc 

voting in Burke County, Georgia, based 

upon simple extreme case analysis in two 

elections in which blacks were 

candidates, a third election in which a 

white sympathetic to black political 

12Not all cases finding vote dilution, 
however, have made findings of bloc 
voting. Neither White v. Regester, 
supra, nor Zimmer v. McKeithen, supra, 
the cases principally relied upon by 
Congress in establishing the results 
standard of Section 2, made specific 
findings that voting was racially 
polarized. The legislative history of 
Section 2 makes bloc voting a relevant 
factor but does not indicate that it is 
a requirement for a violation. See, 
e.g., United States v. Marengo County 
Commission, 731 F.2d 1546, 1566 (11th 
Cir. 1984), citing the Senate Report and 
concluding that "[w]e therefore do not 
hold that a dilution claim cannot be 
made out in the absence of racially 
polarized voting." 

-43,-



interests was a candidate and a fourth 

election in which a black had won a city 

council seat in a district with a high 

percentage of black voters. The court's 

analysis and discussion of bloc voting 

is set out in Appendix A to this 

brief. This Court affirmed the finding 

of bloc voting in Burke County and the 

conclusion that the at-large elections 

were unconstitutional. Rogers v. Lodge, 

458 U.S. 613, 623 (1982) ("there was 

also overwhelming evidence of bloc 

voting along racial lines"). 

For other cases approving the use 

of extreme case or regression analysis 

to prove bloc voting, see City of 

Petersburg v. United States, 354 F. 

Supp. 1021, 1026 n.lO (D.D.C. 1972), 

aff'd, 410 U.S. 962 (1973): Bolden v. 

City of Mobile, 423 F. Supp. 384, 388-89 

(S.D. Ala. 1976) ("Regression analysis 

-44-



is a professionally accepted method of 

analyzing data."), aff'd, 571 F.2d 238 

{5th Cir. 1978), rev'd on other grounds, 

446 U.S. 55 {1980); Nevett v. Sides, 571 

F.2d 209, 223 n.l8 (5th Cir. 1978) 

{"bloc voting may be demonstrated by 

more direct means as well, such as 

statistical analyses , 

Ci t y of Mobile"); 

e.g. 

NAACP 

Bolden v . 

v. Gadsden 

County School Board , 691 F . 2d 978, 982-3 

{ l l th Cir . 1982) {finding "compelling" 

evidence of racial bloc voting based 

upon bivariate analysis); United States 

v. Marengo County Commission, 

1546, 1567 n.34 {llth Cir. 

731 F. 2d 

1984) i 

McMillan v. Escambia County, 748 F. 2d 

1037, 1043 n.l2 {5th Cir. 1984) 

{confirming the use of regression 

analysis comparing race of voters and 

candidates to prove bloc voting); Jones 

v. City of Lubbock, 727 F.2d 364, 380-81 

-45-



(5th Cir. 1984) (approving the use of 

bivariate regression analysis). 

The State contends, however, that 

bivariate regression analysis is 

"severely flawed" and that the presence 

of racial bloc voting can only be 

estalished by use of a multivariate 

analysis that tests or regresses for 

factors other than race, such as age, 

religion, income, education, party 

affiliation, campaign expenditures, or 

"any other factor that could have 

influenced the election." Appellants' 

Brief, pp. 41-2. 1 3 The State relies 

13The Solicitor General does not support 
the Appellants on this point, but agrees 
with the Appellees that " [ i ]n most vote 
dilution cases, a plaintiff can 
establish a prima facie case of racial 
bloc voting by using a statistical 
analysis of voting patterns that 
compares the race of a candidate with 
the race of the voters." Brief for the 
United States as Amicus Curiae, p. 30 
n.S7. 

-46-



principally upon the concurring opinion 

of Judge Higginbotham in Jones v. City 

of Lubbock, 730 F.2d 233, 234 (5th Cir. 

1984), denying rehearing to 727 F.2d 364 

(5th Cir. 1984) , in which he says in 

dicta that proof of a high correlation 

between race of voters and candidates 

may not prove bloc voting in every case 

and that it "will often be essential" to 

eliminate all other variables that might 

explain voting behavior. 

Not only has this Court expressly 

approved findings of bloc voting based 

upon extreme 

analysis, but 

contention 

case and regression 

it has rejected the 

that multivariate 

regressional analysis is required. In 

Jordan v. Winter, Ci v. No. GC-80-WK-0 

(N.D. Miss. April 16, 1984), slip op. at 

11, the three judge court invalidated 

-47-



under Section 2 the structure of 

Mississippi's second congressional 

district in part upon a finding of a 

"high degree of racially polarized 

voting" based upon a bivariate 

regression analysis comparing the race 

of candidates and voters in the 1982 

elections. The State appealed, Allain 

v. Brooks, No. 83-2053, and challenged 

the finding of bloc voting, citing Judge 

Higginbotham's concurring opinion in 

Lubbock ( id., Jurisdictional Statement 

at 12- 3). 14 

14see also, Justice Stevens concurring 
op1nion in Mississippi Republican 
Executive Committee v. Brooks, 

U.S. , 105 S. Ct. 416 n.l (1985), --:-..-noting that the Jurisdictional Statement 
in No. 83-2053 "presents the question 
whether the District Court erroneously 
found •.• that there has been racially 
polarized voting in Mississippi." 

-48-



The use of a regression analysis 
which correlates only racial make­
up of the precinct with race of the 
candidate 'ignores the reality that 
race ••. may mask a host of other 
explanatory variables.' [730 F.2d] 
at 235. 

This Court summarily affirmed, sub nom. 

Mississippi Republican Executive 

Committee v. Brooks, u.s. 105 ------ ----~ 

S.Ct. 416 (1984), thereby rejecting the 

specific challenge to the sufficiency of 

bivariate regression analysis to prove 

racial bloc voting contained in the 

jurisdictional statement. Mandel v. 

Bradle~, 432 U.S. 173, 176 (1977). 

It should be reemphasized that 

Judge Higginbotham ruled for the 

plaintiffs in Lubbock and concurred in 

the judgment affirming the dilution 

finding by the district court. He 

concluded that the defendants, other 

-49-



than criticizing the plaintiffs' 

methodology, failed to offer any 

statistical evidence of their own in 

rebuttal, and that accordingly 

plaintiffs must be deemed to have 

established bloc voting: 

given that there is no evidence to 
rebut plaintiffs' proof other than 
the city's criticism of Dr. 
Brischetto's study and its attempt 
to show responsiveness, I agree 
with Judge Randall that the record 
is not so barren as to render 
clearly erroneous the finding by 
the district court that bloc voting 
was established. 
730 F.2d at 236. 

Thus, the most that can be argued from 

Judge Higginbotham's concurrence is that 

where plaintiffs prove bloc voting by 

correlation analysis, the proof must 

stand unless defendants rebut 

plaintiffs' evidence with statistics of 

their own. The State made no such 

rebuttal here. 

-50-



In United States v. Dallas County 

Commission, 739 F.2d 1529 (11th Cir. 

1984}, the district court found evidence 

of bloc voting based upon the 

correlation of race of candidates with 

voting, 739 F.2d at 1535 n.4, but 

discounted it because of supposedly non­

racial factors, e.g. voter apathy, the 

advantage of incumbency, blacks ran as 

"fringe party" candidates, etc. 739 

F.2d at 1536. The court of appeals 

rejected these non-racial explanations 

for the defeat of black candidates 

because of lack of support in the 

record. Id. Th_e case thus approves the 

proposition that it is sufficient to 

establish racial bloc voting by 

bivariate analysis, and if such a 

finding is to be discounted, there must 

be contradicting evidence in the 

record. The State produced no 

-51-



contradicting evidence in this case and 

as a result its argument that bloc 

voting was not proved should be 

unavailing. 

C. The Court Should Not Ado~ 
Rigid DefTnrtion or. ~d of 

Proof of Bloc Voting 

Aside from requiring polarization 

to be significant, this Court should not 

adopt any additional definition of 

racial bloc voting. Section 2 analysis 

requires a court to evaluate the 

particular, unique facts of individual 

cases. Imposing any rigid definition of 

bloc voting in advance would thus be 

inconsistent with the totality of 

circumstances and individual appraisal 

approach to dilution claims which 

-52-



Congress has adopted. It might also 

lead to findings of bloc voting or no 

bloc voting in individual cases which, 

in view of the totality of factors, 

would be simply arbitrary. 

This Court has avoided a single 

formula approach to proof of 

polarization or discrimination in other 

areas of civil rights law. In jury 

discrimination cases, for example, this 

Court and lower federal courts have used 

a number of tests for establishing a 

prima facie showing of minority 

exclusion but have never indicated that 

one method of statistical analysis is 

required in every instance. 

In Swain v. Alabama, 380 U.S. 202 

(1965), the Court indicated that a 

disparity as great as 10% between blacks 

in the population and blacks summoned 

for jury duty would not prove a prima 

-53-



facie case of unconstitutional 

underrepresentation. Swain was 

generally applied to mean that 

disparities in excess of 10% would be 

unconstitutional. Foster v. Sparks, 506 

F.2d 805, 811-37 (5th Cir. 1975) 

-
(Appendix to the Opinion of Judge 

Gewin) . The so-called "absolute 

deficiency" method of analysis used in 

Swain does not give a true picture of 

underrepresentation, however, when the 

minority group is small. For example, 

if the excluded group were 20% of the 

population and 10% of those summoned for 

jury duty, the absolute deficiency would 

only be 10%, whereas in fact the group 

would be underrepresented by one-half. 

To meet the limitations of the 

absolute deficiency standard, this Court 

and lower federal courts have also used 

a comparative deficiency test for 

-54-



measuring underrepresentation, by which 

the absolute disparity is divided by the 

proportion of the population comprising 

the specified category. Alexander v. 

Louisiana, 405 U.S . 625, 629-30 (1972) 

(using both the absolute and comparative 

deficiency methods): Berr¥ v. Cooper, 

577 F.2d 322, 326 n.ll (5th Cir. 1978): 

Stephens v. Cox, 449 F.2d 657 (4th Cir. 

1971). Those courts using the 

comparative deficiency standard have 

not, however, adopted any particular cut 

off for racial exclusion. 

This Court has also referred to, 

without requiring that it be used, a 

third method 

underrepresentation 

the statistical 

of calculating 

in jury selection, 

significance test. 

Castaneda v. Partida, 430 U.S. 482, 496 

n.l7 (1977): Alexander v. Louisiana, 

supra, 405 U.S. at 630 n.9, 632. The 

-55-



test measures representativeness by 

calculating the probability of a 

disparity occurring by chance in a 

random drawing from the population. The 

district court in this case used this 

method of analysis in part to support 

its finding of bloc voting. 

It is apparent from examining the 

cases that this Court has not required a 

single mathematical formula or standard 

for measuring underrepresentation in all 

jury selection cases and has, in fact, 

expressly declined to do so. Alexander 

v. Louisiana, supra, 405 U.S. at 630. A 

similar approach to proof of bloc voting 

in vote dilution cases would therefore 

be consistent with this Court's 

treatment of related discrimination 

issues in other cases. 

It is significant that none of the 

tests for jury exclusion used by this 

-56-



Court has required 

disprove non-racial 

_explanation for 

underrepresentation. 

challengers to 

the factors as 

minority 

Instead, once a 

prima facie case has been made using 

some form of bivariate analysis, the 

courts have held that the burden of 

proving 

racially 

officials. 

selection procedures are 

neutral shifts to election 

Alexander v. Louisiana, 

supra, 405 U.S. at 632; Casteneda v. 

Partida, supra, 430 U.S. at 497-98. In 

the context of vote dilution litigation, 

defendants might attempt to disprove 

bloc voting by any method of analysis 

they chose, including multivariate 

regression analysis, but that should be 

no part of plaintiffs' case. 

It would be plainly inconsistent 

with the intent of Congress to require 

plaintiffs to conduct multivariate 

-57-



analysis in Section 2 cases. In 

amending Section 2 Congress adopted the 

pre-Mobile dilution standards, and 

bivariate correlation analysis was an 

accepted method of proving bloc 

voting. Therefore, this method of proof 

should be satisfactory under Section 2. 

Requiring plaintiffs to conduct 

multivariate regression analysis would 

also shift a court's inquiry from the 

result or 

lines to 

fact 

the 

of voting 

intent of 

along racial 

voters, an 

inquiry which Congress intended to 

pretermit 

Congress 

for three 

in amending Section 2. 

adopted the results standard 

basic reasons. 

Bolden intent test "asks 

First, the 

the wrong 

97-417 at question." Senate Rep. No. 

36. If minorities are denied a fair 

opportunity to participate in politics, 

existing procedures should be changed 

-58-



regardless of the reasons the procedures 

were established or are being 

maintained. Second, the intent test is 

"unnecessarily divisive" because it 

requires plaintiffs to prove the 

existence of racism. Id. Third, "the 

intent test will be an inordinately 

difficult burden for plaintiffs in most 

cases." Id. 

It would be tantamount to the 

repeal of the 1982 law to say that proof 

of intent is not required in Section 2 

cases, and at the same time make 

plaintiffs prove that voters were voting 

purposefully for reasons of race to 

establish a violation. Such an 

evidentiary burden would again ask the 

"wrong question," would be unnecessarily 

divisive and would place inordinately 

difficult 

plaintiffs. 

burdens on minority 

It would essentially 

-59-



nullify the intent of Congress in 

enacting the statute. 

There are a number of very 

practical considerations, not discussed 

by the State at all, which further 

demonstrate the inherent unfairness, and 

in some cases the impossibility, of 

requiring minority plaintiffs to conduct 

multivariate regression analysis. 

( 1) Im,eossibili ty. In some cases 

it will simply be impossible to do any 

kind of regression analysis, or even an 

extreme case analysis,~-~·' where there 

is only one or no homogenious 

precincts. Requiring a multivariate 

regression analysis in a city with only 

one polling place, such as Moultrie, 

Georgia, see Cross v. Baxter, 604 F. 2d 

875, 880 n.8 (5th Cir. 1979}, would 

absolutely foreclose a dilution 

challenge, even through minorities were 

-60-



totally shut out of the political 

and polarization was process 

complete. 15 Such a result would be 

absurd and contrary to the intent of 

Congress in amending Section 2. 

In still other cases, regression or 

even extreme case analysis will be 
-

impossible to perform because election 

records no longer exist or cannot be 

broken down into precincts. Such was 

the situation in Rome, Georgia, where 

the trial court nonetheless found bloc 

voting and denied Section 5 preclearance 

to a number of municipal voting 

l5In Cross, the court of appeals held 
simply that a finding by the trial court 
of no bloc voting "on this record" would 
be clearly erroneous where "[n]o black 
candidate has ever received even a 
plurality of white votes and Wilson, the 
first black elected to the council 
appears to have received as little as 5% 
of white votes." Id. 

-61-



changes. 

United 

CitX o f Rome, Georgia v. 

States, 472 F. Supp. 221, 226 

n.36 (D.C . 1979). This Court affirmed, 

concluding that the district court did 

not err in determining "that racial bloc 

voting existed in Rome." 

v. United States, 446 

(1980). 

City of Rome 

u.s. 156, 183 

( 2) Quantification. The State 

ignores the enormous burden, and in some 

instances the impossibility, of 

quantifying, i.e. expressing in numbers, 

all the non-racial factors potentially 

influencing voters. It would be 

difficult indeed to quantify candidate 

expenditures or name recognition, or as 

the State suggests, "any other factor 

that could have influenced the 

election," by precinct. Appellants' 

Brief, pp. 41-2 . Perhaps these factors 

could be quantified through extensive 

-62-



surveys; perhaps not. But in any case, 

the attempt to quantify them would be 

enormously difficult, time consuming and 

expensive and in most cases the burden 

on minority plaintiffs would be 

prohibitive. 

The State's suggestion that 

plaintiffs quantify and regress "any 

other factor" that might have influenced 

the elections would send plaintiffs on a 

wild goose chase. Even if it were 

possible, 

literally , 

both financially and 

for plaintiffs to provide a 

multivariate analysis , defendants would 

claim - as the State has here - that 

allegedly relevant factors were omitted 

and that the analysis thus must fail. 

The State's argument is little more than 

a prescription for maintenance of 

discriminatory election practices. 

{3) Unavailable Precinct Level 

-63-



Data. The State fails to note that -
correlation analysis is almost always 

based upon precinct level data. While 

racial data is usually available, 

precinct level data for income, 

education, etc., generally does not 

exist. The Census contains some of this 

information by enumeration districts, or 

in some states by block data, but not by 

precincts. The cost and time involved 

in extractng non-racial variables from 

the Census at the precinct level, to the 

extent that they are available at all, 

would be overwhelming if not 

prohibitive. 

The State's contention that 

Appellees must conduct a multivariate 

analysis is contrary to Section 2, the 

legislative history and the prior 

decisions of this Court. The finding of 

bloc voting and the methodology of the 

-64-



lower court in this case were entirely 

correct. 

CONCLUSION 

Amici Curiae respectfully urge the 

Court to affirm the judgment below on 

the grounds that the trial court 

properly applied amended Section 2 to 

find that North Carolina's 1982 

legislative apportionment impermissibly 

dilutes minority voting strength. 

Respectfully submitted, 

. * Laughl1n McDonald 
Neil Bradley 
American Civil 
Liberties Union 
Foundation, Inc. 
52 Fairlie St.,N.W. 
Atlanta, GA 30303 
(404) 523-2721 

Of Counsel: 
Maureen T. Thornton 

Cynthia D. Hill 
League of Women 
Voters Education 
Fund 
1730 M. St., N.W. 
Washington, D.C. 
20036 
(202) 429-1965 

League of Women Voters, Education Fund 
Attorneys For Amici Curiae 

* Counsel of record 

-65-



APPENDIX A 
Trial Court's Analysis of Bloc Votinil_ 

in Lodge v. Buxton, Civ. No. 176-55 

{S.D. Ga. Oct. 26, 1978), slip. op. at 

7-9 

There was a clear evidence of bloc 

voting the only time Blacks ran for 

County Commissioner. Obviously, this 

must be ascribed in part to past 

discrimination. There are three Militia 

Districts in which Blacks are in a clear 

majority, the 66th, 72d and 74th. 7 

7The Court finds the following to 
reasonably accurate estimate of 
registered voters by race in 
district, as of 1978. 

Precinct Black White 

Waynesboro 
60-62 District 1,050 2,149 

Munnerlyn 
6lst District 44 50 
[Footnote continued] 

A-l 

In a 

be a 
the 

each 

Total 

3,199 

94 



fourth district, the 69th, as of 1978, 

there were only a few more Blacks than 

Whites. One black candidate, Mr. 

Alexander 
63rd District 75 104 179 

Sardis 
64th District 211 478 689 

Keysville 
65th District 163 214 377 

Shell Bluff 
66th District 167 82 249 

Greenscutt 
67th District 49 215 264 

Girard 
68th District 110 195 305 

St. Clair 
69th District 29 26 55 

Vidette 
7lst District 52 112 164 

Gough 
72d District 201 68 269 

Midville 
73rd District 184 195 379 

Scotts Store 
74th District 98 52 150 

Total 2,433 3,940 6,373 

A-2 



Childers, won in the four black 

districts, losing in all of the 

others. The other black candidate, Mr. 

Reynolds, won in three of the black 

districts losing in all of the others. 8 

Similarly, in 1970 Dr. John Palmer, 

a white physician from Waynesboro, who 

open the first integrated waiting room 

in Burke County, ran for County 

Commission.- Generally, he was thought 

of as being sympathetic to black 

political interests. He was soundly 

defeated. 

In the recent city council election 

in Waynesboro, the county seat, a Black 

was elected to the council for the first 

time in history. This event can be 

8 :Plaintiffs' Request for Admissions, 
filed June 5, 1970, Exhibits I-3 and I-
4. 

A-3 



attributed to the high degree of bloc 

voting, and to the fact that the elected 

Black ran in a district with a high 

percentage of black residents. 9 

9This was possible because this Court 
created single-member districts. See 
Sullivan v. DeLoach, Civil No. 176-238 
(S.D. Ga.) Order entered September 11, 
1977. 

A-4 








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